Pelerman v Pelerman

The case of *Pelerman v Pelerman* involved an appeal to the Full Court of the Family Court of Australia concerning an application to set aside consent orders made in property settlement proceedings. The wife sought to vary consent orders previously made, alleging a miscarriage of justice due to duress, suppression of evidence, or other circumstances, as permitted by section 79A(1)(a) of the *Family Law Act 1975*. The primary judge had declared that the particulars provided by the wife did not, as a matter of law, constitute these grounds and subsequently dismissed her application to amend the particulars and struck out her original application.

The legal issues before the Full Court were whether the primary judge erred in law and in the exercise of discretion by summarily dismissing the wife's application. Specifically, the court had to determine if the particulars provided by the wife, which alleged her lack of knowledge of the husband's financial affairs due to his behaviour, could establish a miscarriage of justice under section 79A(1)(a). The wife contended that her ignorance of the husband's financial position, coupled with his controlling conduct, meant she did not provide informed consent to the consent orders, leading to an unjust outcome.

The Full Court found that the primary judge had erred in summarily dismissing the wife's application. The court reasoned that the husband's failure to disclose his financial circumstances when the consent orders were made could constitute "any other circumstance" leading to a miscarriage of justice, making the application not "doomed to fail." Furthermore, the court held that the failure to disclose financial circumstances meant there was an absence of informed consent, which could amount to "suppression of evidence," again meaning the summary dismissal was an error. The court affirmed the primary judge's finding that the particulars did not disclose a case of "duress."

Consequently, the Full Court granted leave to appeal, allowed the appeal, and set aside the primary judge's declaration. The court also set aside the orders dismissing the wife's application to amend particulars and striking out her original application, allowing the matter to proceed.